Glenn Greenwald: What the Supreme Court got right (Flashback)

What the Supreme Court got right

By Glenn Greenwald

The Supreme Court yesterday, in a 5-4 decision, declared unconstitutional (on First Amendment grounds) campaign finance regulations which restrict the ability of corporations and unions to use funds from their general treasury for “electioneering” purposes. The case, Citizens United v. FEC, presents some very difficult free speech questions, and I’m deeply ambivalent about the court’s ruling. There are several dubious aspects of the majority’s opinion (principally its decision to invalidate the entire campaign finance scheme rather than exercising ”judicial restraint” through a narrower holding). Beyond that, I believe that corporate influence over our political process is easily one of the top sicknesses afflicting our political culture. But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints.

I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me. Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like. Denouncing court rulings because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme. If the Constitution or other laws bar the government action in question, then that’s the end of the inquiry; whether those actions produce good results is really not germane. Thus, those who want to object to the Court’s ruling need to do so on First Amendment grounds. Except to the extent that some constitutional rights give way to so-called “compelling state interests,” that the Court’s decision will produce “bad results” is not really an argument.

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I’m also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don’t see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: ”banks own” the Congress). Corporations find endless ways to circumvent current restrictions — their armies of PACs, lobbyists, media control, and revolving-door rewards flood Washington and currently ensure their stranglehold — and while this decision will make things marginally worse, I can’t imagine how it could worsen fundamentally. All of the hand-wringing sounds to me like someone expressing serious worry that a new law in North Korea will make the country more tyrannical. There’s not much room for our corporatist political system to get more corporatist. Does anyone believe that the ability of corporations to influence our political process was meaningfully limited before yesterday’s issuance of this ruling?

1. wtf???

"But there are also very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints." ...writes Greenwald?

Seriously? There are MORE very real First Amendment interests implicated by laws that states that entities (read corporations) can spend as much as they want. The first amendment didn't have mega corporations and their money in mind, far as we should be concerned.

54. Say that to those of us who are bashed for supporting the President. n/t

3. I read that recently and went "Yikes!"

"Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant."

"Even if this is true, it's not really relevant." Not relevant? Wow, just wow.

63. Not banned, regulated.

Voters should determine how much corporations (including unions, PP as well as the American Petroleum Institute and PHRMA) can spend. The decision didn't strike down the specifics of campaign finance regulation, it struck down the generality.

30. Actually, that was precisely the issue at hand and that is why the ACLU

40. Did you read the brief submitted by the ACLU?

It was VERY narrow in terms of it's focus and assumed, at the time, the USSC would stay within the bounds of the actual case. The USSC did not do so and, instead, went far beyond the issue put before it.

Here is a link to the brief submitted by the ACLU, it makes for very interesting reading given where the USSC went in their broadening of the issue and subsequent decision.

8. I was forced to seriously think about it

when I found out that the ACLU supported it. I'm still not 100% sure, but I do lean towards thinking the ruling is correct, despite its disastrous consequences in our current climate. It basically (for me) boils down to a matter of how the opposite ruling would affect "the little guy": unions wanting to do political advocacy, or me wanting to get together with others to do so.

This is basically one of those things that makes me feel really conflicted... the right thing in theory/principle vs. the right thing in the current environment. And I do tend to weigh the ACLU's opinion very strongly having seen what principled stances they will take despite opposition in their traditional support circles (for example supporting KKK rallies, Rush Limbaugh's privacy, and the Koran-burning pastor guy )

16. See my reply to spazito (n/t)

11. The thing is....

if the USSC had ruled in the status quo, that the "campaign finance regulations which restrict the ability of corporations and unions to use funds from their general treasury for “electioneering” purposes" were constitutional, neither unions nor corporations would have suffered from it, it would remain status-quo. Now with corporations having NO real limitations on them, mega-corporations with many billions in their coffers, they can outspend the unions, the "little guy" even more than they did before.

The decision, in effect, made "free speech" even less free than before, the USSC just ensured that it could be bought more easily by corporations than by the little guy.

Edited to add Justice Steven's Dissenting Opinion which I found to be a key document to read in understanding how bad the majority court decision was:

14. I'd like to see them try to outspend the unions, to be honest.

It would bleed them dry and then they start to get diminishing returns. Get a candidate in office, have a split government or a slowly progressing government, or even a President that veto's stuff, it is increasingly not worth it.

25. It is not the lobbying rules that were changed, it was much greater than that...

I really suggest you read Justice Steven's dissenting opinion to really understand how great a change, how disastrous a change this decision has brought about.

Here's only a small snippet:

"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

31. The REAL money is spent on the Congressional candidates...

when it comes to corporations. They know full well a republican held Senate and/or a republican held House is a much better product to buy as it is they who decide the direction the country will go.

Republican candidates, once elected, seem to stay 'in line' once elected, doing the bidding of the corporations without any hesitation.

Corporate influence most definitely has very strong "political sway" once the candidates upon whom they lavish their dollars are elected.

If one wants to 'keep their eye on the prize', it is not watching the race for the Presidency, it is the numbers game re the Senate and the House. The corporations know full well the prize is not the White House, it is the Senate and the House.

34. I don't think I have a chance at convincing you otherwise.

Most candidates already have corporate backgrounds when they enter contention, so for the corporations it's not too much of an issue, they know who to shill for and who not to. Go to the links I provided, please. The non-profits and other groups do not spend as much money as lobbyists, by far.

33. Leaving the status quo, shut down neither....

making the decision they did gave NO advantage to Planned Parenthood, the Sierra Club, etc, as their ability to raise funds is MUCH more limited than that of multi-national corporations whose coffers are filled globally not merely nationally. Giving personhood to corporations does not benefit the organizations you listed to any great degree, the pool from which they pull their donations is very small whereas the pool from which multi-national corporations can pull is virtually unlimited.

39. Again, the status quo shut down no one...

The decision, on the other hand, handed the multinational corporations the 'greater' right to free speech, it sold free speech to the highest bidder who were NOT the organizations you list, it WAS to the multinational corporations like News Corp, Shell Oil, etc.

the ACLU and any other advocacy groups the right to engage in political speech at any time during the election season. The status quo not only barred Citizens United from political speech but the AFL-CIO, (and News Corp, Shell, ATT, ALEC, Planned Parenthood, the Sierra Club), as well.

I do not like the political speech that News Corp can buy but I do like the political speech that the ACLU can buy. The fact that one is a behemoth and the other not is a legislative conundrum. Not a judicial one.

46. The status quo didn't bar them, it just limited them from unduly....

influencing the electoral process. That limitation is now gone and not only did it give a BIG advantage to the multinational corporations over the organizations you have listed it opened the door to foreign countries to LEGALLY interfere with the U.S. electoral process.

Take, for example, News Corp, the shareholders who, in essence, have the controlling interest, are the Murdoch family combined with Prince Alwaleed bin Talal al-Saud of Saudi Arabia. There is NO LONGER a bright dividing line as to who may contribute money in hopes of buying the votes of perspective members of the House and/or Senate. I am sure you can guess to whom the dollars are going and it is NOT to Democratic candidates.

15. Yeah you're right

it doesn't actually help the little guy in practical terms, I messed up there. I guess it does just go to "the principle" despite the results being bad. Sucks when that happens but I shudder at the thought of giving up principles when convenient. Same reason I'm against means-testing for Social Security or banning KKK rallies (which in turn makes it "ok" for the other side to ban rallies for causes they don't like). I realize that the vast majority here will disagree with me and I'm not really trying to argue the point (I have a hard enough time justifying it to myself, let alone others)... just wanted to reply.

77. Very well said, Spazito. And thanks for the link! nt

55. Why don't you use your own mind and think for yourself?

Because the ACLU supports it or Glenn Greenwald doesn't mean you have to support it. Read it yourself and make up your mind without being swayed. Many supported Obama's move into Libya...I did not and I made sure to get the info on both sides with more evidence supporting Obama's intervention through UN rulings than actually against Libya. But I made up my mind without being swayed.

57. I never said I was forced to support it

I happen to value the opinions of certain groups and give their arguments more weight. They have gained that respect and trust through my previous analysis of their positions and opinions. If you choose not to do such a thing that's fine (though I strongly suspecjustt you do... we all trust some people's judgment more than average, it's human nature IMO). But please don't imply that just because someone gives more weight to something means they are incapable of independent thought. (And in case you're thinking of pointing out my use of the word "forced", I'm sure you can figure out what I meant by that given this context if you couldn't before)

68. Oh I respect people's opinion and value some more than others.

But none more than my own since I know how to read. Their expertise doesn't make them right. Jonathan Turley is looked upon as someone worthwhile but he's also the same man who felt that it was constitutional that Clinton be impeached and supported the action. Many liberals love that man. I find him a blowhard. ACLU has made a couple of decisions I don't agree with.

I found the way you say you were "swayed" to be forced into thinking a different way because you trust these people so much. I don't give anyone or anything that much power.

76. I still think you misunderstood my post (n/t)

12. I actually do agree with the ruling and with Greenwald's assessment here.

People really think I'm probably crazy on this one but the ALCU was right. The corporations didn't mind being silenced because they can always funnel money in interesting ways, the unions, on the other hand, were hurting for it.

20. Maybe he was wrong on this one

I'm not sure though, this seems a very complex issue and rather obscure. I'm not really understanding it. Anyway, I think the guy is a brilliant writer but that doesn't mean I will always agree with him.

32. He got the first paragraph right.

Equating money with speech is where he goes totally, 100% wrong.

I can read what Greenwald's opinion and evaluate what he has to say and then decide to what degree I agree with him. See how that works?

I get it, ProSense, you don't like Greenwald. He is more critical of our President than you care for. Message received. Beyond that, give me some credit for critical thinking skills. If you take issue with what he says, that's fine and I want to know why you disagree with him. The attack on the messenger, though, isn't wearing well.

43. My next door neighbor who is on SSI has access to a lot less money

than I do. If she and I were in a dispute, I could flood the neighborhood with fliers. I could print a banner and hang it from my house, and I could take out a small ad in the local paper (I have the resources to do so).

The city enacts a regulation that says I can't do this any more.

Either the First Amendment allows these speech restrictions or it doesn’t.

38. I think equating money with speech was long-established precedent

That that was the constitutional environment in which citizens united was decided

It is easy to see that money can be speech--imagine a communist newspaper. Congress outlaws its publication. The court says no. So congress outlaws financially supporting the newspaper. The court says, No... if somebody gives to the communist newspaper they are supporting and participating in its dissemination of its message. The newspaper's speech is their speech.

But when applied to all possible abuses and all possible scale of money it becomes a very tricky set of questions

48. You

Equating money with speech is where he goes totally, 100% wrong.

I can read what Greenwald's opinion and evaluate what he has to say and then decide to what degree I agree with him. See how that works?

I get it, ProSense, you don't like Greenwald. He is more critical of our President than you care for. Message received. Beyond that, give me some credit for critical thinking skills. If you take issue with what he says, that's fine and I want to know why you disagree with him. The attack on the messenger, though, isn't wearing well.

...just demonstrated the problem, focusing on me. Here is an OP with an opinion by Greenwald. Regardless of why it was posted (and I knew not everyone was going to agree with his views, but that's almost a given with nearly everything posted here), the focus should be on his opinion. Take a look at the other comments. The discussion is interesting.

You decide to turn the focus on me, implying that somehow you, unlike me, you have the ability to evaluate his opinion and render approval or disapproval.

Why did you feel the need to point out that I "don't like" Greenwald in response to this OP? Why do you believe that it's impossible for me (and it's clear you have no idea who I am beyond your limited perception) to disagree with Greenwald in a reasonable way?

What does your "critical thinking skills" have to do with me, and why do you feel it necessary to make that point in response to this OP? Are you unsure of your skills? Do you feel that by disagreeing with Greenwald I'm somehow challenging your intellect?

Leave aside that this OP doesn't include a criticism.

Why do you consider criticism an "attack on the messenger"?

I criticized Cenk in another thread, but he wasn't the "messenger." He wasn't delivering a message for anyone, it's his opinion.

Disagreeing with Cenk and calling him a moron was criticism appropriate to the idiocy of his premise and the absurdity of the statements he made.

Still, why is that a problem for you?

If Christ Christie or Joe Scarborough says something absurd, and some refers to either of them as a blowhard, is that an "attack on the messenger"?

You seem unable to separate your admiration for Greenwald from my opinion of him. You seem to feel the need to level a personal criticism of me in response to my criticism of Greenwald. Maybe you should focus on rebutting the points of my criticism and resist engaging in a personal assessment of me or questioning my motives.

When warranted, I criticize, and on point and on style if appropriate.

52. You do criticize on point, very often.

And much of what you have said about the perspective and bias of the columnists has been illuminating. I don't mean to assign motive, but it seems to me that rehashing a controversial, eleven-month-old article is an attempt to discredit, not by pointing out the fallacy in his thinking in regard to Bradley Manning, but by insinuating that his thinking must be inherently flawed.

I do have regard for Greenwald's opinion, as I do for yours. I hesitate to characterize that regard as admiration, but I won't belabor the point.

Cenk has a history that illustrates he has probably not been a Republican, neo-con shill in disguise. I disagree vehemently with him on the caucus ploy. I have said so and stated why. I hope we are able to persuade others that to do as he suggests would truly be cutting off our nose to spite our face. I think Cenk is terribly mistaken -- again (it isn't the first time.) I don't think that discredits him out of hand. I do take everything he has to say with a huge grain of salt. He earns his livelihood by talking about politics. I don't think people can do that without becoming a bit (maybe a lot) bellicose.

I haven't been following the Stoller conversation, so I won't attempt to comment on that.

As for Joe Scarborough and Chris Christie, they discredit themselves. I don't think either of them has ever said anything worthy of consideration. If by some accident they do one day, I will be appropriately astonished.

I'm sure you know that you are engaging in ad hominem attacks. I will leave it to you to decide if they are an effective form of persuasion.

61. Fascinating!

And much of what you have said about the perspective and bias of the columnists has been illuminating. I don't mean to assign motive, but it seems to me that rehashing a controversial, eleven-month-old article is an attempt to discredit, not by pointing out the fallacy in his thinking in regard to Bradley Manning, but by insinuating that his thinking must be inherently flawed.

Citizens United is very Relevant. Glenn Greenwald's opinions are always in the spotlight. Please, don't pretend that old articles are never posted here. It's very clear I posted the article to stimulate a discussion. Still, why would you consider his opinion on Citizens an "an attempt to discredit"?

50. The support by Greenwald, the ACLU, Eliot Spitzer, and others was not unconditional.

Greenwald clearly stated: "I’m deeply ambivalent about the court’s ruling" and added "There are several dubious aspects of the majority’s opinion ..."

His view that speech should not be curtailed by Congress is certainly consistent with the well known views of Justice Black and Justice Douglas. His view is also consistent with that of Eliot Spitzer who expressed his opposition to the restriction upon speech while pointing out that "The McCain-Feingold statute excluded "media companies" from its limitations" and therefore was not applicable to Fox News (a corporation which essentially engages in electioneering communications) which bombards the airwaves with political rhetoric every day.
http://www.slate.com/articles/news_and_politics/the_best_policy/2009/09/let_citizens_united_speak.html

What's the difference between the established positions taken by Justices Black and Douglas, and the positions taken by the ACLU and Eliot Spitzer versus Glenn Greenwald?

Is there any difference other than the fact that the former parties have not criticized President Obama's actions while Greenwald sometimes has?

Greenwald said that he was in favor of the First Amendment. To the extent that the Supreme Court made a ruling consistent with the First Amendment, Greenwald said that he was in favor of that aspect of the Court's ruling. (The Supreme Court is not particularly liberal. But as is sometimes said, even a broken clock can be right twice a day.) Greenwald never said that he was in favor of all aspects of the Court's ruling.

The fact that Greenwald has sometimes criticized certain actions of President Obama which cannot be considered liberal or progressive does not mean that Greenwald is the Devil with horns.

59. It is readily apparent that Greenwald has no legal training. His arguments are based

on a faulty premise. Namely, : "In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes)."

At the risk of stating the obvious, understanding the the potential outcomes of various laws, measured up against the principles laid out in the Constitution, is the very soul of Constitutional legal interpretation ("construction".) One wonders what Greenwald makes of all those ponderings about what the Framers would've made of this or that development?

The idea that the Constitution must be construed in some sort of "gotcha!" language where a dangling participle controls over the Framers' intent? Sorry Glenn, it's childish and misinformed.

64. Excellent point.

At the risk of stating the obvious, understanding the the potential outcomes of various laws, measured up against the principles laid out in the Constitution, is the very soul of Constitutional legal interpretation ("construction".) One wonders what Greenwald makes of all those ponderings about what the Framers would've made of this or that development?

There is the problem of dealing in absolutes and applying one's own rigid interpretation to the Constitution.

Here was Lawrence Lessig's response to Greenwald:

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Yet this is the most confused part of the commentary (and reaction) of most to this kind of regulation. If the government's reason for silencing corporations is that they don't like what corporations would say -- if it thinks, for example, that it would be too Republican, or too pro-business -- then that's got to be a terrible reason for the regulation, and we all ought to support a decision that strikes a law so inspired.

That, however, is not the only, or the best, justification behind the regulations at issue in Citizens United. Those rules not about suppressing a point of view. They're about avoiding a kind of dependency that undermines trust in our government. The concentrated, and tacitly, coordinated efforts by large and powerful economic entities -- made large and powerful in part because of the gift of immunity given by the state -- could certainly help lead many to believe "money is buying results" in Congress. Avoiding that belief -- just like avoiding the belief that money bought results on the Supreme Court -- has got to be an important and valid interest of the state.

If the Court really means to say that entities that fund or create other entities can't limit the power of those entities to speak -- so the government can't stop doctors from talking about abortion, or the IRS can't stop non-profits from talking about politics -- then we really have crossed a Bladerunner line. For that conclusion really does mean that these entities were "created with certain unalienable rights," even though they were created by a pretty pathetic creator -- the state.

My point is not that the state's power to condition should be unlimited. The point instead is that it's not so simple, or absolute, as Greenwald would have it. And given the true complexity of these evolving and complicated doctrines, it is certainly fair to be critical in the extreme of this decision by the Court, favoring speech that most believe it naturally likes (unlike abortion-speak), in a decision that ignores the judgment of Congress about the conditions under which the integrity of that body, or any election, proceeds.